License to kill/ A court affords a disturbing degree of power to

0 Comments | Gazette, The (Colorado Springs), Jun 17, 2000

The Ninth Circuit U.S. Court of Appeals held Wednesday that Lon Horiuchi, the FBI sniper who shot and killed Randy Weaver's unarmed wife, Vicki, during a standoff near Ruby Ridge, Idaho in August 1992, cannot be prosecuted by the state of Idaho for manslaughter. Since Horiuchi was a federal officer who was doing his lawful duty, the court ruled, the U.S. Constitution's Supremacy Clause gives him immunity from criminal prosecution in a state court (although the same court allowed a federal civil case against Horiuchi to proceed).

As Circuit Judge Alex Kozinski, who dissented in the case, points out, this decision was not only not justified by the facts, it sets a dangerous precedent that "waters down the constitutional standard for the use of deadly force by giving officers a license to kill even when there is no immediate threat to human life, so long as the suspect is retreating to take up a defensive position." It should make us all feel less secure.

Some background. Randy Weaver decided to stay in his remote mountain cabin rather than appear in court on a weapons charge and was under surveillance. On that Aug. 22, six armed U.S. marshals came onto his property without announcing themselves, came in contact with the Weaver family and their friend Kevin Harris and, in a brief exchange of gunfire, Weaver's 14-year-old son, Sammy, and U.S. Marshal William Degan were killed. The next day federal agents surrounded the plywood cabin with "rules of engagement" that gave them more latitude to shoot to kill than standard FBI procedure. Lon Horiuchi, a highly trained sniper with the FBI Hostage Rescue Team, was in a concealed position 200-300 yards from the cabin. (More details are in the actual decision, available at www.ce9.uscourts.gov/ web/opinions.nsf/ and search for State of Idaho v. Horiuchi, No. 98- 3-0149)

Lon Horiuchi fired two shots that day.

The first grazed Randy Weaver, who was outside the cabin carrying a rifle. The second, which he said was intended to take out the man with the gun as two men and a teen-age girl scrambled to return to the cabin, killed Vicki Weaver, who stood in the cabin doorway holding her infant. Horiuchi says he never saw her. The U.S District Court and the Ninth Circuit held that he "honestly subjective standard and reasonably objective standard believed his actions to be necessary and proper." Therefore, as a federal agent, he is immune from state prosecution.

The majority ignored the fact that both the U.S. Department of Justice and a Senate subcommittee, after extensive inquiry, concluded (as the DOJ Office of Professional Responsibility put it) that "the second shot violated the Constitution." Since when is it within the proper legal scope of a federal officer to violate the Constitution?

The appropriate way to determine Horiuchi's culpability would have been a jury trial on state manslaughter charges.

In denying that possibility the Ninth Circuit came close to giving federal agents a license to kill in a wider range of circumstances. A most troubling turn on the path toward greater federal power.

Victims of color

Drug war falls hard on black Americans

A report released last week by Human Rights Watch, an international watchdog organization, suggest strongly that the war on drugs is waged disproportionately against black Americans. (www.hrw.org/reports/2000/usa/).

Voters need to hear from both major-party candidates how they would address this situation, which stands to contribute significantly to a growing distrust of the judicial system by minority Americans.

As Jamie Fellner, associate counsel of Human Rights Watch notes, "Most drug offenders are white. Five times as many whites use drugs as blacks. But blacks comprise the great majority of drug offenders sent to prison."

These figures could be tweaked slightly. Black people make up about 13 percent of the population, white people about 73 percent, so there are slightly more than five times as many white people as black people, which might mean a slightly higher percentage of black people than white people use illicit drugs. Still, if the laws were applied equally, one would expect to see about five times as many whites as blacks in prison for drug offenses.

That's not how it is. Nationwide, black people comprise 62 percent of drug offenders sent to state prison. Nationwide, black men are sent to prison on drug charges at 13 times the rate of white men.

There are also reasons besides blatant racial prejudice why this might be the case, as Human Rights Watch Executive Director Kenneth Roth acknowledges.Whatever the reasons, however, this is an unjust, divisive and potentially explosive phenomenon.

Human Rights Watch recommends the elimination of mandatory minimum sentences for drug offenses, more use of alternatives to incarceration, more use of "drug courts," more treatment programs and the end of racial profiling. Some reasonable first steps beyond the self-defeating drug war?